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Why EWG Opposes the Chemical Safety Improvement Act

In a blog posted yesterday (June 5), Richard Denison, senior scientist at EDF, sought to explain why his organization supported the Chemical Safety Improvement Act of 2013, introduced May 22 by the late Sen. Frank Lautenberg, D-N.J., and Sen. David Vitter, R-La. The Environmental Working Group opposes the bill. Dave Andrews, Ph.D, EWG Senior Scientist, has sent this response to EDF.

We at the Environmental Working Group join with Richard Denison in our great appreciation for Senator Frank Lautenberg’s heroic work for public health and the environment over many decades. We have high regard for Mr. Denison’s own devotion to these causes.

But with all respect, we do not agree that the Chemical Safety Improvement Act of 2013 (S. 1009), which, just before his death, Sen. Lautenberg agreed to sponsor with Sen. David Vitter, D-La., and 19 of their colleagues, is the right legislative vehicle for chemical reform. This bill reflects the agenda of the American chemical industry, not the public interest community that has worked long and hard to reform the law now on the books, known as the Toxic Substances Control Act of 1976. The Lautenberg-Vitter bill’s shortcomings are so profound that neither we, nor any other environmental or public health group that we know of, supports it as written, while the chemical lobby enthusiastically embraces the proposal.

While this bill offers EPA limited authority in two instances, the reality is that this bill does not address the egregious failings of current law. The industry bill preserves an incredibly weak safety standard and may actually be worse than current law because it would bar states from enacting their own regulatory reforms. It's a bad deal that could become set in stone for another generation.

The bill proposes a few steps in the right direction—steps the industry itself has acknowledged as indefensible failings of current law. For one, it would give the EPA some authority to review existing chemicals. Right now, the EPA’s power to do this is extremely limited. Further, the bill would permit the EPA to order a company to submit chemical test data that would help agency assess the safety of the substance in question. Under current law, the agency must go through the rule-making process, a cumbersome and lengthy undertaking, to obtain that data.

But even these improved authorities are imbedded with procedural complications that could seriously compromise their intent. By no estimation do those positive steps outweigh the bill’s objectionable features, among them:

The bill’s safety standard is weak and does not require EPA to protect vulnerable populations like children and pregnant women. The safety standard does not require EPA to consider cumulative risk from aggregate exposure. The standard centers on whether a substance presents an “unreasonable risk.” The very term “unreasonable risk” requires a cost-benefit analysis. Current law requires EPA to take the “least burdensome” course of action in regulating a chemical. The bill would strike that language but would replace it with provisions that require a seemingly endless cost-benefit assessment of alternatives. The public would endure decades of more of the same -- an EPA unable to protect people from the riskiest chemicals.

State authority to regulate chemicals would be severely undermined, if not crippled.

Chemical manufacturers would likely be immune from legal actions brought by injured individuals in civil proceedings, once EPA determined that a chemical presented a “not unreasonable risk” to people.

When submitting health and safety testing data, companies would be allowed to keep secret the names and other identifying features of their chemicals.

The bill would not set clear deadlines for regulatory action. Instead, it uses vague phrases like "from time to time" or "in a timely manner." These would allow industry manipulation and bureaucratic foot-dragging.

The bill would not require companies to shoulder some of the costs of doing safety evaluations. The EPA would be forced to pay all the costs for those evaluations.

New chemicals could be manufactured and sold before the EPA fully evaluated their safety. The proceeds from the sales of these novel substances could generate revenue to pay for toxicity testing. But if those chemicals were subsequently found to be dangerous, the EPA would confront multiple obstacles in banning or restricting them.

The bill would not require basic safety test data for new or existing chemicals.

It would not offer special protections from persistent, bioaccumulative and toxic substances, known as PBTs.

It would not protect workers, economically disadvantaged communities or "hot spots."

At EWG, we are all about getting things done and finding a middle ground. Indeed, even now we are working on a series of amendments, nearly all of them bipartisan, to reflect the broad public interest in federal farm policy.

But with the chemicals legislation, we are left wondering: which strengthening amendments for public health is chemical industry willing to add to the bill? If none, does EDF still support its enactment as written? And exactly which "other ways" would be available to add the many key missing components? State efforts will be paralyzed, if not extinguished, according to California authorities and most attorneys we have consulted. Would we be forced to rely on more voluntary efforts by industry, similar to the failed voluntary testing program for high-production-volume chemicals that EDF championed? That program, which the EPA launched in 1998, allowed the chemical industry to avert stronger reforms for more than a decade. Ultimately voluntary testing provided a fraction of the information needed to protect public health.

The public interest community still has its work cut out for it in fixing the Toxic Substances Control Act. We regret to say that by acceding to such an extraordinary degree to industry, this legislation advances the debate in a direction directly contrary to that work.